Massachusetts General Laws c. 151B prohibits sexual harassment in the workplace. Sexual harassment is defined as “sexual advances , requests for sexual favors, and other verbal or physical conduct of a sexual nature when: (a) submission to or rejection of such advances is made either explicitly or implicitly a term or condition of employment and (b) such advances, requests or conduct have the purpose or effect of unreasonably interfering with an individual’s work performance by creating an intimidating, hostile, or sexually offensive work environment.

In order to prove a claim ofhostile work environment harassment, a complainant must prove that he or she was: (1) subjected to sexually demeaning conduct; (2) the conduct was unwelcome; (3) the conduct was objectively and subjectively offensive; (4) the conduct was sufficiently severe or pervasive as to alter the conditions of employment and create an abusive work environment; and (5) the employer knew or should have known of the harassment and failed to take prompt and effective remedial action. See College-Town Division of Interco, Inc. v. MCAD, 400 Mass. 156, 162 (1987); Ramsdell v. Western Mass Bus Lines, Inc., 415 Mass. 673, 678 (1993).

In a case recent decided by the Massachusetts Commission Against Discrimination, Avila v. J&S Restaurant, et al., Docket No. 09-BEM-01557, a complainant alleged that she was subjected to unwelcome touching, comments and propositions of a sexual nature by her restaurant owner boss. She testified that such conduct occurred on a number of occasions and was demeaning, intimidating and threatening to her. Notable to the Hearing Officer was the fact that the complainant was a relatively small woman, and the respondent a very tall, large man. The complainant alleged that she was intimidated by his size and physical strength, and that his conduct included a physical altercation that began with the boss cornering her and touching her breast. The incident frightened and intimidated the woman sufficiently to cause her to leave her employment and to file a criminal complaint for assault and battery.

In proceedings before the Massachusetts Commission Against Discrimination, evidence of sexual harassment must be considered from the perspective of a reasonable person in complainant’s position, and by evaluating all the circumstances, including the frequency of the conduct, its severity, whether it was physically threatening or humiliating, and whether it unreasonably interfered with the worker’s performance . See Scionti v. Eurest Dining Service’s, 23 MDLR 234, 240 (2001) citing Harris v .Forklift Systems, Inc., 510 U.S. 17 (1993). Also relevant is the subjective standard of sexual harassment, which requires a determination as to whether the complainant personally experienced the behavior to be unwelcome. See Couture v. Central Oil Co., 12 MDLR 1401, 1421 (1990). In this case, the Hearing Officer determined that the Complainant met all the requisite standards of proof.

In order to find that a worker who has left a job was constructively discharged, the evidence must show that the conditions under which complainant worked were so intolerable that a reasonable person would have felt compelled to resign. Choukas v. Ocean Kai Restaurant, 19 MDLR 169 (1997). On all of the evidence in Avilla, the Hearing Officer determined that the woman had no option but to resign her employment after the physical confrontation with her boss. Prior to those events, she was intimidated, demeaned and humiliated by her employer’s unwelcome sexual comments and propositions, but his actions of that evening caused her to feel threatened and fearful. The evidence also showed that there was no individual in the workplace with whom complainant could lodge a complaint, no avenue for seeking relief, and that she was without expectation that the situation would improve. On those facts, the Hearing Officer found that the woman’s refusal to return to work after the altercation was the result of a constructive discharge.

Upon a finding of unlawful discrimination, the Massachusetts Commission Against Discrimination is authorized to award remedies to make a complainant whole and to ensure compliance with the anti-discrimination statutes. G.L. c. 151B, §5; Stonehill College v. MCAD, 441 Mass. 549, 576 (2004). The Commission may award monetary damages for, among other things, lost wages and emotional distress suffered by a complainant as a direct and probable consequence of the unlawful discrimination. In this case, the woman was awarded lost wages and tips for a period exceeding six months after she left her employment, as well as damages for emotional distress in the amount of $50,000.00. While awards for emotional distress are not commonplace, when appropriate they must be fair and reasonable, as well as proportionate to the harm suffered. It is also the burden of the complainant to show a sufficient causal connection between the respondent's unlawful act and the complainant's emotional distress. Stonehill College v. Massachusetts Commission Against Discrimination, et al., 441 Mass. 549, 576 (2004). In this case, the woman presented substantial evidence that her employer’s conduct caused her grievous mental pain and suffering, and as a result, the Commission felt a substantial monetary award for her emotional distress was warranted.